The new CPO circular

Project iStock 000000224397XSmall 146x219The Department for Communities and Local Government has issued a new circular on compulsory purchase and the Crichel Down Rules. David Altaras and Marc Samuels review this key document for planning practitioners.

In October 2015, the Department for Communities and Local Government issued “Guidance on Compulsory Purchase Process and The Crichel Down Rules for the disposal of surplus land acquired by, or under the threat of, compulsion”,[1] which cancelled and superseded the old CPO Circular ODPM 06/2004, drawing largely from its content, along with 13 other circulars and notices of government guidance. The new Circular consists of 139 pages, 2 appendices and 1 annex, in irritating Q & A format. It has the following layout:

Tier 1 – Compulsory Purchase Overview

Introduction

Stage 1: choosing the right compulsory purchase power

Stage 2: justifying a compulsory purchase order

Stage 3: preparing and making a compulsory purchase order

Stage 4: consideration of the compulsory purchase order

Stage 5: implementing a compulsory purchase order

Stage 6: compensation

Tier 2 – Enabling Powers

Tier 3 - Guidance on detailed procedural issues and the preparation and service of additional documents

Separate but related Guidance on Purchase Notices and The Crichel Down Rules[2]

Tier 1 - Compulsory Purchase Overview

Introduction (paragraphs 1 – 8)

The Circular begins with a familiar passage about the importance of compulsory purchase powers:

“Compulsory purchase powers are an important tool to use as a means of assembling the land needed to help deliver social, environmental and economic change. Used properly, they can contribute towards effective and efficient urban and rural regeneration, essential infrastructure, the revitalisation of communities, and the promotion of business – leading to improvements in quality of life.”[3] and is followed by the need to ensure that a CPO is only made “where there is a compelling case in the public interest”.[4]

Paragraph 2 reiterates the importance of seeking to acquire the necessary land by agreement with the landowner[5] and of addressing human rights issues.[6] Paragraph 3 address the possible savings in proceeding by agreement.

Paragraph 6 deals with an issue that has arisen since the old circular - the Public Sector Equality Duty arising under the Equality Act 2010 - although it is difficult to see how in practice this issue will ever present a real difficulty.

Paragraph 8 refers in passing to the other methods of compulsorily acquiring land, namely a Transport and Works Act order; a development consent order; a hybrid act of Parliament such as the Crossrail Act 2008; and a harbour revision order and a harbour empowerment order. 

Stage 1: choosing the right compulsory purchase power (paragraphs 10 – 11)

The title is self-explanatory and the text cross refers to the powers set out in more detail in Tier 2.

Stage 2: justifying a compulsory purchase order (paragraphs 12 – 15)

Paragraph 13 emphasises that, If an acquiring authority does not have a clear idea of how it intends to use the land which it is proposing to acquire or cannot show that all the necessary resources are likely to be available to achieve that end within a reasonable time-scale, it will be difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest, at any rate at the time of its making.

Continuing along the same route, paragraph 14 suggests that the acquiring authority should address the sources and the timing of the funding.

Paragraph 15 advises that the acquiring authority will need to show that the scheme is unlikely to be blocked by any physical or legal impediments to implementation, including the programming of any infrastructure accommodation works or remedial work which may be required or any need for planning permission or other consent or licence.

Stage 3: preparing and making a compulsory purchase order (paragraphs 16 – 24)

Paragraph 18 gives useful advice about minimising landowners’ concerns by: providing full information; appointing a case manager; minimising delay; discussing compensation; offering advice and assistance; giving a date before which acquisition will not occur; and considering paying costs and expenses.

The succeeding paragraphs deal with the importance of ensuring that a CPO is made correctly; matters that require special consideration; which parties should be notified; and objections.

Although generally expected to rely upon its own advice, an acquiring authority can request technical support from the Secretary of State on the preparation of the CPO, by submitting a draft CPO and Statement of Reasons for technical examination before it is made: paragraph 23. The Secretary of State will examine the CPO to check that it complies with the requirements on form and content in the 2004 Regulations but it cannot consider the merits of the CPO nor provide any legal advice.

Stage 4: consideration of the compulsory purchase order (paragraphs 25 – 45)

These paragraphs deal with objections, public local inquiries, written representations, authorities’ statements of case, recovery of costs, confirmation of the order in whole or in stages, and delegation to the acquiring authority of the power to confirm the order.

Stage 5: implementing a compulsory purchase order (paragraphs 46 – 53)

These paragraphs deal with notice to treat, notice of entry and general vesting declaration.

Stage 6: compensation (paragraphs 54 – 59)

This section provides to a fairly rudimentary introduction to compensation, dealing with the basis for compensation, the relevant valuation date, advance payments and the recovery of professional fees.

Tier 2 - Enabling powers

Tier 2 refers to certain enabling powers and deals with some specific issues that arise in relation to each of the powers.[7] Guidance is given on the following powers:

Section 1: advice on section 226 of the Town and Country Planning Act 1990 (paragraphs 64 – 76)

Section 2: Advice on Section 121 of Local Government Act 1972 (paragraphs 77 – 87)

Section 3: The Homes and Communities Agency (paragraphs 88 – 94)

Section 4: Urban development corporations (paragraphs 95 – 105)

Section 5: Powers of local housing authorities for housing purposes and listed buildings in slum clearances (paragraphs 106 – 122)

Section 6: To improve the appearance or condition of land (paragraphs 123 – 127)

Section 7: For Educational Purposes (paragraphs 128 – 140)

Section 8: For public libraries and museums (paragraphs 141 – 142)

Section 9: For airport Public Safety Zones (paragraphs 143 – 145)

Section 10: For listed buildings in need of repair (paragraphs 146 – 153).

Tier 3 - Guidance on detailed procedural issues and the preparation and service of additional documents

Tier 3 has two main headings, each of which consists of a number of sections:

Common procedural issues

Section 11: preparing statement of reasons (paragraph 154)

Section 12: general certificate (paragraphs 155 – 156)

Section 13: preparing and serving the order and notices (paragraphs 157 – 180)  

Section 14: order maps (paragraph 181)

Section 15: addresses (paragraph 182)

Procedural issues applying to some compulsory purchase orders

Section 16: for community assets (at the request of community) (paragraphs 183 – 184)

Section 17: special kinds of land (paragraphs 185 – 202)

Section 18: compulsory purchase of new rights and other interests (paragraphs 203 – 216)

Section 19: compulsory purchase of Crown land (paragraphs 217 – 221)

Section 20: certificates of appropriate alternative development (paragraphs 222 – 234)

Section 21: protected assets certificate (paragraphs 235 – 239).

Points to note

We will not deal in detail with the various sections, but simply call out a few points of interest:

  • Paragraph 154 sets out a helpful check list of the matters that should be included in a Statement of Reasons. There are 15 suggested items.
  • Paragraph 156 suggests a precedent for a non-statutory general certificate intended to provide reassurance to the confirming authority that the acquiring authority has followed the proper statutory procedures. Again, it provides a helpful checklist.
  • Paragraph 161 gives advice as to what information about the land to be acquired should be included in a draft CPO and paragraph 173 about what information should be included in the order schedule.
  • Paragraph 181 advises as to what information an order map should provide.
  • Paragraph 182 conveniently sets out in tabular form the names and address of the various Government Departments to which the orders, applications and objections should be sent.
  • Paragraph 222 deals with the difficult issue of planning assumptions under Part II of the Land Compensation Act 1961 as amended by Part 9 of the Localism Act 2011.

Purchase Notices

This standalone section of the Circular provides comprehensive guidance on all issues relating to the content, service, and compliance with purchase notices. The guidance is provided in relation to specific questions that broadly cover the following:

  • Statutory provisions for service of a purchase notice, including time and formalities for service, form of the notice and subsequent rights to amend, and requirements in respect of the land and parcels of land in different ownership (paragraphs 240-249).
  • The “reasonably beneficial use” requirement and effect of a purchase notice (paragraphs 251-255).
  • Compliance of the Council, local authority or statutory undertakers with the notice including the statement of reasons for non-compliance (paragraphs 256-260)
  • Hearings and local inquiries, the ability of the owner to lodge an appeal and appeal against the Secretary of State’s decision on a purchase notice (paragraphs 261-263)
  • Calculation of compensation (paragraph 264)

The Crichel Down Rules

These paragraphs set out the revised non statutory arrangements under which surplus government land which is acquired by, or under threat of compulsion should be offered back to previous owners, their successors, or to sitting tenants. The established position is that where a department wishes to dispose of land to which the Crichel Down Rules apply, former owners will as a general rule be given the first opportunity to repurchase the land, provided that its character has not materially changed since acquisition. “Material change” comprises, for example, the erection of dwellings or offices on open land, or where substantial works have been made to an existing building, thereby altering its character. Where only part of the land has been materially changed in character, the general obligation to offer it back to former landowners will only apply to the unchanged portion of the land. The guidance is subcategorised into the following areas:

  • General rules and procedures, including qualification of the land/interests for offer back, time horizons for the obligation, and exceptions of the obligation to offer back (paragraphs 1-17).
  • Special procedures applying to sitting tenants (by reference to Appendix A of the Crichel Down Rules section) (paragraph 18).
  • Procedure for disposal (including where the former owner’s address is known or unknown) (paragraphs 19-24)
  • Circumstances where boundaries of agricultural land have been obliterated (by reference to Appendix B) (paragraph 25).
  • Terms of resale and the recording of disposals (paragraphs 26-28)

David Altaras and Marc Samuels are barristers at 4-5 Gray’s Inn Square.

Footnotes

[1] Click here. The Government’s intention is that it will be converted to a web-based resource similar to that used for planning guidance.

[2] Named after the notorious 1954 scandal, when requisitioned land, no longer required, was not returned to its former owner, but was transferred to the Ministry of Agriculture who then let it at a substantial profit.

[3] Paragraph 1. A similar passage is to be found in paragraph 1 of the old circular.

[4] Paragraph 2.

[5] A constant theme in the circular see, for example paragraphs 16 and 30. Paragraph 17 encourages the use of ADR with the landowner, including at the compensation stage.

[6] Article 8 is likely to be engaged in some cases. Although Article 1 of the First Protocol might at first blush appear to be contravened, attempts to use that provision have not been particularly successful. See also paragraph 12.

[7] The old circular dealt with similar matters in Appendices A – K.